What Journalists Need to Understand about What Restraining Orders Are: A Tutorial for Investigators, Part 2

Posted on October 9, 2014

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“Orders for protection represent a legislative attempt to incorporate distinct features from both civil law and criminal law. On the one hand, a private litigant can initiate judicial proceedings to seek redress against another private individual. On the other hand, criminal penalties, such as fines and incarceration, will attach if a protection order is violated. Unlike both civil and criminal proceedings, protection order actions involve a great deal of informality, with the end result being an order for protection that is often issued on an ex parte basis without the benefit of a full evidentiary hearing.

“Many aspects of Nevada law in this area can best be described as ‘murky,’ with virtually no critical or scholarly study available to assist Nevada’s courts. Moreover, statistical information about protection orders in Nevada is almost non-existent.”

—Staff attorney Joe Tommasino, Las Vegas Justice Court

The first thing reporters need to grasp about restraining orders is that they’re a kluge (a Frankenstein’s monster crudely stitched together from dubiously compatible parts). For plaintiffs (accusers), they merge the most favorable aspects of civil and criminal prosecutions; for defendants, the least favorable.

The scales of justice are tipped from the start.

Restraining orders allow a “private litigant [to] initiate judicial proceedings to seek redress against another private individual” just as civil lawsuits do (though restraining order applications by contrast are typically processed free of charge). They’re also adjudicated according to the lowest civil standard of proof (“preponderance of the evidence”). State standards vary rhetorically, but the criterion for rulings is basically the same: whatever judges fancy is just (and there are only two choices—thumbs up or thumbs down).

On this basis, citizens can be rousted from their homes and kicked to the curb (and some are left destitute). On this basis, also, they may be entered into domestic violence registries (indefinitely), besides state and federal law enforcement databases (indefinitely), and denied security clearances, loans, leases, and even employment in certain fields (like convicted felons).

Notwithstanding that restraining order allegations are introduced in civil court and aren’t subject to the criminal standard of evidence (“proof beyond a reasonable doubt”), “criminal penalties, such as fines and incarceration, will attach if a protection order is violated”—or is simply alleged to have been violated: arresting officers need only have a reasonable suspicion that a violation occurred, which they need not have witnessed.

The savvy observer will note that suspicion is the motive determiner of liability at all levels. Suspicion informs judicial disposition, subsequent police response to claims of violation, and of course interpretation by third parties, including employers (judges trust accusers, and everyone else trusts judges). Emphatically worthy of remark is that billions of dollars of federal monies have been invested over the past 20 years toward conditioning judicial and police suspicion.

This may incline the savvy observer to suspect the fix is in.

He or she should appreciate further that restraining orders are most commonly issued ex parte, which means accusers simply fill out a form and very briefly interview with a judge without defendants’ being present to contest the allegations and without their even being aware that they’ve been made. (Some courts even explicitly advise plaintiffs to rehearse their allegations so they can recite them as quickly as they would an order at a drive-thru.) Although most states mandate that a follow-up hearing be slated to give the accused an opportunity to controvert the allegations against them and receive an “unbiased” second opinion, follow-up hearings are held in the same court that prejudicially ruled against them in the first place: “We found you guilty. Go ahead and tell us why we screwed up. You have 15 minutes.” Because restraining order trials are civil proceedings, defendants aren’t provided with legal counsel. They’re nevertheless afforded only a few days (or a couple of weeks at the outside) to prepare a defense.

Returning to this post’s epigraph, here’s its author’s elaboration of the points it introduces (which apply irrespective of what a restraining order is called):

The concept of a “protection order” or a “TPO” is a curious one under the law. Unlike a criminal case, where the awesome power of the State is wielded against a private citizen, an action for a protection order allows one private citizen to invoke judicial authority directly against another private citizen.

The implications are staggering when one considers that a protection order allows individuals to trigger invisible force fields affecting the conduct, movement, speech, and legal rights of others.

Even more significant is the fact that Nevada law allows a person to obtain a protection order based upon only a brief ex parte application [as do most or all states’ laws].

From these concepts, questions immediately present themselves. Are protection orders being utilized in oppressive or unexpected ways? Are the factual scenarios involved similar to what the [legislature] envisioned them to be? Are courts utilizing protection order tools correctly? Are judges issuing ex parte orders that trample upon the rights of innocent people before a hearing is held to determine the validity of specific allegations? Is this area of the law an insufficiently regulated “wild frontier”?

Loyola Law School Prof. Aaron Caplan, in a 2013 law review article that cites the 2008 paper of Mr. Tommasino’s quoted in this post, says yes.

Many structural factors of civil harassment litigation lead to higher-than-usual risk of constitutional error. As with family law, civil harassment law has a way of encouraging some judges to dispense freewheeling, Solomonic justice according to their visions of proper behavior and the best interests of the parties. Judges’ legal instincts are not helped by the accelerated and abbreviated procedures required by the statutes. The parties are rarely represented by counsel, and ex parte orders are encouraged, which means courts may not hear the necessary facts and legal arguments. Very few civil harassment cases lead to appeals, let alone appeals with published opinions. As a result, civil harassment law tends to operate with a shortage of two things we ordinarily rely upon to ensure accurate decision-making by trial courts: the adversary system and appellate review.

The process essentially operates “in a vacuum”:

Harassment orders, when granted, are very rarely appealed. In the Justice Courts of Las Vegas in 2008, only three out of 2034 non-domestic violence petitions resulted in an appeal. No appellate court opinions interpret the Nevada statute—even though it was enacted in 1989 [that’s zero appellate court opinions in 20 years]. As a result, “the limited jurisdiction courts [of Nevada] have been operating in a vacuum and creating ad hoc, reactive solutions” to recurring problems.

The stagecoach, in other words, is steered without reins. The laxity of the statutes means judges of the lowest-tier courts call the shots, and there are no big brothers looking over their shoulders. They’re licensed to do what they want. (The quotations above refer to different types of restraining order, but the two types aren’t necessarily treated any differently. Whether a petitioned injunction is a protection order or a harassment order may only depend on which box was ticked on the application form. In most jurisdictions, what distinguishes one from the other is the nature of the relationship between the accuser and the accused. The allegations may be identical.)

The legislative insensitivity to constitutional principles and protections as well as the lack of judicial housekeeping in this area of law are beneath the perceptual threshold of the public. To the uninitiated, the absence of controversy originating from “legitimate” sectors suggests that everything’s working as it should: restraining orders are issued to dangerous people who need to be tethered.

While how commonly the process is exploited for ulterior motives is a matter of heated dispute, its availability for abuse is plain. The prevailing attitude toward allegations of rampant abuse is that if statistics can’t be adduced to support them, the complaint is irrelevant and should exercise no influence on policy reform. The absurdity of this attitude is likewise plain. The process is designed to favor accusers, judges are predisposed to credit accuser’s accounts (in part according to explicit instruction), those accounts need not be substantiated, the process is initiated and completed in hearings spanning minutes only, and (as the court attorney who wrote the epigraph notes) comprehensive statistical information about restraining orders is virtually non-existent.

The restraining order process is conducted in a black hole. There’s not only no transparency; there’s no light.

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